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District Court 10 September 2021

R v D

[2021] NSWDC 483

Assault & violence
CRIMINAL LAW CROWN ASSERTED LIFE OFFENDING FOUND ABOVE MID RANGE OF OBJECTIVE SERIOUSNESS SENTENCE AGGRAVATING FACTORS SUBSTANTIAL HARM

Citation: R v D [2021] NSWDC 483
Court: District Court of New South Wales
Date: 10 September 2021
Judge: Hatzistergos DCJ

Background

The offender, the father of an infant boy ("A"), was charged with intentionally causing grievous bodily harm and, in the alternative, recklessly causing grievous bodily harm. The offending period was between 1 August and 25 August 2016, when A was between 8 and 12 weeks old. A had been born with a range of significant neurological abnormalities identified on antenatal screening, including agenesis of the corpus callosum, ventriculomegaly, and abnormal brain structure, as well as a club foot.

On 24 August 2016, A was rushed to hospital after his mother noticed he was not breathing normally and was unresponsive. At the Children's Hospital at Westmead, he underwent emergency brain surgery. The injuries identified included an acute-on-chronic subdural haemorrhage, brain herniation, tearing of cerebral vessels, extensive retinal haemorrhages and retinoschisis of the left eye, rib fractures, metaphyseal fractures across multiple limbs, and extensive bruising. The mother gave evidence that the offender had shaken and massaged A, and that she had heard a "thud" while he was caring for the child approximately a week before hospitalisation.

Following a 20-day trial, the jury acquitted the offender on the intentional harm charge but convicted him of recklessly causing grievous bodily harm under s 35(2) of the Crimes Act 1900 (NSW). The matter then proceeded to a contested sentence hearing, at which expert medical evidence and psychological evidence were tendered and examined.

  • What injuries were caused by the offender's conduct, and to what standard could they be established on sentence given the jury's verdict?
  • What was the objective seriousness of the offending, taking into account the victim's pre-existing congenital abnormalities?
  • Whether aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied, including substantial harm, victim vulnerability, breach of trust, and the offence occurring in the victim's home.
  • Whether the principles from Bugmy v The Queen (2013) applied to moderate the sentence in light of the offender's background.
  • Whether the offender's mental health moderated the need for specific deterrence.
  • Whether a discount for an offer to plead guilty prior to trial was warranted.
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio.

Decision

Fact-finding on injuries: The court found that the brain injuries, eye injuries (including retinoschisis), rib fractures, metaphyseal and stress fractures, and extensive bruising were all established beyond reasonable doubt as caused by the offender's conduct. The mechanisms included shaking, forceful holding, massage-type actions, and at least one episode of blunt force trauma consistent with the "thud" heard by the mother. However, the court was not satisfied beyond reasonable doubt that the left-sided auricular haematoma to the ear was caused by the offender, and declined to take that injury into account on sentence.

Pre-existing abnormalities: The defence argued that A's congenital conditions diminished the extent of harm attributable to the offending. The court acknowledged the pre-existing abnormalities but found that the offender's conduct caused severe and life-long additional harm, including catastrophic brain injury resulting in the liquefaction of almost the entire left cerebral hemisphere. The court assessed the offending as above the mid-range of objective seriousness.

Aggravating factors: The court found multiple statutory aggravating factors established: the harm caused was substantial; A was a particularly vulnerable victim as a very young infant with pre-existing disabilities; the offending took place in the victim's home; and the offender was in a position of trust and authority as the child's father. No domestic violence context evidence was used in the sentencing assessment, consistent with the Crown's disavowal of reliance on it for that purpose.

Subjective factors and discounts: The court found the offender's background could not be characterised as deprived or dysfunctional such as to engage the Bugmy principles. The offender's mental health was taken into account to moderate the need for specific deterrence. A discount was applied for the offender's pre-trial offer to plead guilty to the subject offence, recognising the facilitation of the course of justice. Prospects of rehabilitation were described as somewhat guarded, with a medium risk of reoffending assessed. Special circumstances were found, justifying an adjustment to the ratio between the non-parole period and the total sentence, in part because of the impacts of COVID-19 on the prison environment.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Where a jury acquits on an intentional harm charge but convicts on the reckless alternative, the sentencing court must give full benefit of the acquittal and assess facts consistently with the verdict, declining to find matters only consistent with intent.
  • Pre-existing congenital abnormalities in a victim do not necessarily reduce the objective seriousness of offending where the non-accidental injuries caused independently severe and permanent harm over and above those abnormalities.
  • The District Court declined to apply the Bugmy principles where the offender's background, while not straightforward, could not fairly be characterised as deprived or dysfunctional in the relevant sense.
  • A pre-trial offer to plead guilty to the offence of conviction, even where a not-guilty plea was ultimately maintained at trial, can attract a sentencing discount for facilitation of the course of justice.
  • Special circumstances warranting adjustment of the non-parole period ratio may arise from a combination of factors including the offender's mental health needs, rehabilitation requirements, and the harsher conditions of imprisonment resulting from the COVID-19 pandemic.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33, 35
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 28, 30E, 44
- Crimes (Sentencing Procedure) Regulation 2017 (NSW), r 9

Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- Muldrock v R (2011) 244 CLR 120
- Munda v State of Western Australia (2013) 249 CLR 600
- Beavis v R [2018] NSWCCA 248
- BJ v R [2018] NSWCCA 231
- Bott v R [2012] NSWCCA 191
- DPP v De La Rosa [2010] NSWCCA 194
- Droudis v R [2020] NSWCCA 322
- Fisher v R [2021] NSWCA 91
- Haoui v R [2008] NSWCCA 209
- Hoskins v R [2021] NSWCCA 169
- Kelly v R [2021] NSWCCA 173
- Magro v Regina [2020] NSWCCA 25
- Manocha v R [2019] NSWCCA 122
- Merrick v R [2017] NSWCCA 264
- MRW v R [2011] NSWCCA 260
- Oinonen v R [1999] NSWCCA 310
- Perkins v R [2018] NSWCCA 62
- R v AB [2011] NSWCCA 229
- R v Cardoso (2003) 137 A Crim R 535